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Friday, April 21, 2017

ADOPTION NOT PROVED - ADVERSE POSSESSION NOT PLEADED - LIABLE TO BE EVICTED =Non admission of title of plaintiff - failure to prove adoption and title - No plea of adverse possession property set up - It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.- It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff. In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him. Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430).


                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                         CIVIL APPEAL No.83 OF 2008


Dagadabai(Dead) by L.Rs.                 ….Appellant(s)

                                   VERSUS

Abbas @ Gulab Rustum
Pinjari                             …Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This appeal is filed by the legal  representatives  of  the  plaintiff
against the final judgment and order dated 25.04.2007  passed  by  the  High
Court of Judicature of Bombay, Bench at Aurangabad in Second  Appeal  No.333
of 1990 whereby  the  Single  Judge  of  the  High  Court  while  exercising
jurisdiction under  Section  100  of  the  Code  of  Civil  Procedure,  1908
(hereinafter referred to as “the Code”) reversed the concurrent findings  of
fact arrived at by the two Courts  below  and  dismissed  the  suit  of  the
plaintiff-appellant herein.
2)    We need not burden the order  by  setting  out  the  facts  in  detail
except to the extent necessary to appreciate the short controversy  involved
in the appeal.
3)     The  appellants  are  the  legal  representatives  of  the   original
plaintiff whereas the respondent is the defendant.
4)    The dispute in this appeal relates to  an  agricultural  land  bearing
G.No. 505 (old Sy. No 71) admeasuring 5 Hectare 28 R.  situated  at  village
Vardi, Taluka Chopda, District Jalgao  (MH)  (hereinafter  referred  to  as,
“the suit land".
5)    One Rustum s/o Nathu Pinjari - a Muslim by religion was the  owner  of
the  suit  land.  He  died  intestate  leaving  behind  his  only  daughter-
Dagadabai, w/o Shaikhlal Pinjari. She, as  an  heir,  accordingly  inherited
the suit land exclusively on the death of her father- Rustum.
6)    Dagadabai then filed a Civil Suit, out of which  this  appeal  arises,
against the respondent claiming therein a decree for possession in  relation
to the suit land.  The plaintiff alleged that she is the owner of  the  suit
land whereas the defendant is  in  unlawful  possession  of  the  suit  land
without any right, title and interest therein and, therefore, he  is  to  be
dispossessed from the suit land.  The  plaintiff,  therefore,  as  mentioned
above sought a decree for possession on the strength of  her  title  against
the respondent.
7)    The respondent filed his written statement. He denied the  appellant’s
claim. In the first place, claiming himself to be the adopted  son  of  Late
Rustum, the respondent contended that he became the owner of the  suit  land
by inheritance as an adopted son of Rustum. In the second place,  he  denied
the ownership of the plaintiff in the  suit  land  and  set  up  a  plea  of
adverse  possession  to  claim  his  ownership  over  the  suit  land.   The
respondent contended that he has been in long and continuous  possession  of
the suit land for more than 12 years prior to the  date  of  filing  of  the
suit on the basis  of  mutation  entries  made  in  the  revenue  record  in
relation to the suit land.  It was alleged that he acquired title  over  the
suit land on the strength of his continuous possession which,  according  to
him, was adverse.  It is essentially on these two defenses,  the  respondent
denied the plaintiff's case and defended his possession over the suit  land.

8)    The Trial Court framed issues and the parties  adduced  evidence.  The
Trial Court, by judgment/decree dated 29.08.1983 in Civil Suit  No.  108  of
1981  decreed  the  appellant's  suit.  It  was  held  that  the   appellant
(plaintiff) is the owner of the suit land; defendant  failed  to  prove  his
adoption; there is no concept of adoption in Muslims and hence  there  could
be no valid adoption of the respondent by Rustam and nor  such  adoption  is
recognized in Mohammadan Law; the defendant has failed to  prove  his  title
over the suit land on the basis of his  alleged  possession  over  the  suit
land; the defendant is, therefore, in illegal  and  unauthorized  possession
of the suit land for want of any right, title and interest and hence  liable
to be dispossessed from the suit land.
9)     Felt  aggrieved,  the  defendant  filed  first  appeal   before   the
Additional District Judge, Amalner. Vide order  dated  18.09.1990  in  Civil
Appeal No.43 of 1989.  The first appellate Court affirmed the  judgment  and
decree of the Trial Court and dismissed the appeal.
10)   Felt aggrieved, the defendant carried  the  matter  in  Second  Appeal
before the High Court. The High Court admitted the appeal on  the  following
substantial question of law:
“Whether  in  the  facts  and  circumstances  of  the  present   case,   the
defendant(appellant herein) perfected his title to the suit land on  account
of adverse possession and the alternative plea ought to  have  been  allowed
by the Courts below, particularly, when there were  disputes  regarding  the
mutation proceedings after the death of Rustum Pinjari and the intention  of
the defendant to get his name mutated was writ large  to  show  his  hostile
attitude.”

11)   By impugned order, the learned Single Judge of the High Court  allowed
the appeal and while setting aside the judgment/decree  of  the  two  courts
below dismissed the suit giving rise to filing of  this  appeal  by  special
leave by the plaintiff before this Court. The leave was granted.
12)   Heard Mr. Anshuman Animesh, learned counsel  for  the  appellants  and
Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are  inclined  to  allow  the  appeal  and  while
setting aside of the impugned order restore that of the Trial Court and  the
first Appellate Court.
14)   In our considered opinion, the  High  Court  erred  in  admitting  the
second appeal in the first instance and then further erred  in  allowing  it
by answering the question framed in defendant’s  favour.  This  we  say  for
more than one reason as detailed below.
15)    First,  when  the  Trial  Court  and  the   First   Appellate   Court
concurrently decreed the plaintiff's suit by recording all the  findings  of
facts against the defendant enumerated above, then,  in  our  opinion,  such
findings of facts were binding on the High Court.
16)   It is also for additional  reasons  that  the  findings  were  neither
against the pleadings nor evidence and nor against any  provisions  of  law.
They were also not perverse on facts to the extent that no average  judicial
person could ever record. In this  view  of  the  matter,   we  are  of  the
opinion that the second appeal did not involve  any  question  of  law  much
less substantial question of law within the meaning of Section  100  of  the
Code to enable the High Court to admit the appeal on any such question  much
less answer it in favour of the defendant.
17)   Second, the question which was formulated by the High  Court  did  not
involve any question of law much less substantial  question  of  law  within
the meaning of Section 100 of the Code requiring interference in  the  first
Appellate Court’s judgment.
18)   Third, the plea of adverse possession being essentially a  plea  based
on facts, it was required to be proved by the party raising it on the  basis
of proper pleadings and  evidence.  The  burden  to  prove  such  plea  was,
therefore, on the defendant who had raised it. It was, therefore,  necessary
for him to have discharged the burden that laid on him  in  accordance  with
law.
19)   When both the Courts below held and, in our  view,  rightly  that  the
defendant has failed to prove the plea of adverse possession in relation  to
the suit land then such concurrent findings of fact  was  unimpeachable  and
binding on the High Court.
20)   Fourth, the High Court erred fundamentally  in  observing  in  Para  7
that, "it  was  not  necessary  for  him  (defendant)  to  first  admit  the
ownership of the plaintiff before raising such a plea".
21)   In our considered opinion, these observations of the  High  Court  are
against the law of adverse possession. It is a settled principle of  law  of
adverse possession that the person, who claims title over  the  property  on
the strength of adverse possession and thereby wants  the  Court  to  divest
the true owner of his ownership rights over such property,  is  required  to
prove his case only against the true owner of the property.  It  is  equally
well-settled that such person must necessarily first admit the ownership  of
the true owner over the property to the knowledge  of  the  true  owner  and
secondly, the true owner has to be made a party to the suit  to  enable  the
Court to decide the  plea  of  adverse  possession  between  the  two  rival
claimants.
22)    It  is  only  thereafter  and  subject  to  proving  other   material
conditions with the aid  of  adequate  evidence  on  the  issue  of  actual,
peaceful, and uninterrupted continuous possession of  the  person  over  the
suit property for more than 12 years to the exclusion  of  true  owner  with
the element of hostility  in  asserting  the  rights  of  ownership  to  the
knowledge of the true owner, a case of adverse possession can be held to  be
made out which, in  turn,  results  in  depriving  the  true  owner  of  his
ownership rights in the property and vests ownership rights of the  property
in the person who claims it.
23)    In  this  case,  we  find  that  the  defendant  did  not  admit  the
plaintiff's ownership over the  suit  land  and,  therefore,  the  issue  of
adverse possession, in our opinion, could not have been  tried  successfully
at the instance of the defendant as against the plaintiff. That  apart,  the
defendant having claimed the ownership over the suit land by inheritance  as
an adopted son of Rustum and having failed to prove this ground, he was  not
entitled to claim the title by adverse possession against the plaintiff.
24)   In the light of this settled legal position, the  plea  taken  by  the
defendant about the adoption for proving his ownership over  the  suit  land
as an heir of Rustum was rightly held against him.
25)   Fifth, the defendant having failed to prove that he  was  the  adopted
son of Rustum, had no option but to suffer the decree of dispossession  from
the suit land. It is a settled principle of Mohammadan Law  that  Mohammadan
Law does not recognize adoption (see-Section  347  of  Mulla  Principles  of
Mahomedan Law, 20th Edition page 430).
26)   It is for the aforementioned reasons, the impugned  judgment  is  held
legally unsustainable and hence deserves to be set aside.
 27)   The  appeal  thus  succeeds  and  is  accordingly  allowed.  Impugned
judgment is set aside and that of the Trial Court and  the  first  Appellate
Court is restored.

………...................................J.
                              [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
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